November 11th, 2015
There are certain warning signs that should tell you to look for another attorney no matter the type of representation you have, be it a criminal matter, personal injury or to draft a will. Take any of the following signs as a warning to look for another lawyer:
1. Little or No Communication From Your Lawyer
Your lawyer works for you. As such you should be kept abreast of any and all developments. If a motion is filed or an order entered, it should be sent to you immediately. Similarly, you should be informed of any new development in your case. If months go by where you have not received any correspondence from your attorney or any telephone calls from their office, you should take it as a bad omen of things to come.
2. Returning Telephone Calls
Just as it is important for your attorney to communicate with you it is critical that your telephone calls are returned immediately. If you telephone your attorney and he does not call you back within one day that is a sign that they are either too busy to return a simple telephone call or don’t care about your case.
3. Being Given a Guarantee
It is impossible and unethical for an attorney to give a guarantee of an outcome. To do so is indicative of an attorney who will lie to you in order to get your business. If an attorney makes a guarantee at the beginning of a case, you are forewarned about the type of attorney they are. If an attorney makes a guarantee in order to placate you, it means that they will lie in order to keep your business. Never hire an attorney or keep an attorney who is willing to make a guarantee about a specific outcome of your case.
4. Making You Feel Stupid
If in response to good, hardhitting questions you are made to feel stupid, that is a sign that the attorney has done something wrong. An attorney who twists things and makes their clients feel like they don’t understand what is happening or the possible repercussions is an attorney who should not be representing people. In almost all situations, things can be explained so that the client can understand.
5. Being Asked To Participate In Questionable Activity
It should go without saying that an attorney is supposed to ensure that all sides play on an equal playing field. The most important aspect of hiring a good attorney is knowing that when you go into a courtroom everyone respects your attorney. If the attorney asks or allows you to operate in a “gray” area, that is a bad sign because it is very likely that others in the judicial system will know your attorney is a snake/cheater which will harm your chances of a favorable outcome.
6. Not Being Straightforward About Fees
All fees should be discussed before you hire an attorney. Once the attorney is hired, you should enter into a contract setting out the fees and expenses. If you do not have a contract or engagement letter from the attorney, that should be a warning that you will ultimately be overbilled and unhappy with the attorney.
October 13th, 2015
Just as I refer someone to an attorney who specializes in an area of law I am not comfortable in, most of my clients come through referrals by other attorneys who, in part because of my reputation for excellence in criminal law, recommend that the prospective client contact me.
Other times a client finds me by searching the internet, making an appointment with me, and comparing me to other attorneys who they have also found on the internet.
In the 30 years that I have been an attorney, I have seen firsthand the mistakes that clients routinely make when deciding who they should hire to represent them or their loved ones who are charged with crimes.
The majority of prospective clients have never been in trouble before and don’t have a grasp of the criminal justice system. Their nervousness about “being in trouble” leads them to choose an attorney who generally is overworked and unable to focus on their specific case.
Over time, I have seen prospective clients choose the wrong attorney for the wrong reason. Oftentimes, a client will decline to retain me, only to return six months later telling me that exactly what I had originally said is coming to pass. There are general “themes” when the client returns to my office and what follows are the 6 most common “themes” that seem to happen.
1. Hiring a Defense Attorney Who Lacks Specific Experience in Your Case Type
The first thing someone should do when looking to hire a criminal defense attorney is research the crime with which the person is charged. For example if someone federal drug conspiracies. Experience does not simply mean an attorney who has a volume practice where they process the client through the criminal justice system. Experience means someone who has earned the respect of the Government by fighting for their clients by way of going to trial or through filing pretrial motions. Like anything else in life, respect is the greatest asset anyone can have.
2. Not Asking Hard Questions
After researching the crime, make an appointment with 3 or 4 attorneys. Do not be afraid to ask hard questions. You are hiring someone who will literally have your life in their hands.
3. Allowing Disorganization
When you interview an attorney, see what kind of office they have. It is easy to make promises on the telephone or during the first interview. But, if you have to wait to meet with the attorney that is a bad sign. Similarly, if their desk is full of papers it shows that the attorney is not going to be focused on your case.
4. Be Wary of an Attorney Advising You to Plead Guilty Early in Your Relationship
If during the first appointment, the attorney discusses pleading “guilty” that is a warning because the attorney should know very little about your case. Discussing pleading guilty without having any idea of the facts involved or possible defenses shows that the attorney ultimately will be more interested in having you plead “guilty.” It is similar to a brain surgeon diagnosing you with brain cancer during the first appointment without doing any tests.
5. Not Doing Your Due Diligence on Previous Cases
Ask questions about the number of federal criminal trials the attorney has had in the past year or five years. Get the names of the cases so that you can look them up. Get the names of former clients you can call to see whether the attorney will actually fight for you. It is an indication that a lawyer will not fight hard for you if they never go to trial. Similarly, getting an idea of how hard they worked for former clients is indicative of the type of relationship the attorney has with their clients.
6. You Get What You Pay For
The issue of fees is something that goes into hiring an attorney. Unfortunately, the reality of life is that the better the attorney, the more it will cost. Volume attorneys are cheaper than quality attorneys and you need to accept that a good federal criminal attorney will be more expensive. If you are comfortable with a particular attorney, do whatever you possibly can to hire that attorney. Otherwise, you generally will end up with someone who you will never feel is doing a good job for you.
June 1st, 2015
This Wednesday, the Seventh Circuit issued an interesting opinion regarding police shootings. On November 12, 2007, Jerome Weinmann celebrated his one year anniversary with his wife by guzzling half a bottle of vodka, holing himself in his garage with a shotgun, and taking four bullets from a responding police officer. When Officer McClone arrived at the scene and entered the garage, he shot Weinmann immediately.
Prior to opening fire, Officer McClone understood four things: that Jerome possessed a shotgun, he may have been suicidal, he had not answered the officer’s knocks on the garage door, and that “pattering” sounds could be heard from inside the garage. Armed with only that information and his service weapon, McClone burst into the garage and shot Jerome four times in the face, thumb, and torso. Miraculously, Mr. Weinmann survived the encounter and filed a civil suit against officer McClone.
While not a criminal case per se, Weinmann v. McClone represents interesting precedent for future cases regarding police force. A recurring theme of this blog has been the appropriateness of police conduct and the lack of restraint thereof. Cynics might consider police officers effectively immune from criminal consequence. Just this month, a Cleveland police officer was acquitted of manslaughter after firing 137 rounds at two unarmed civilians from the hood of their own car.
Perhaps then, civil remedies like the claim filed against Officer McClone might represent a means of curbing police violence, and the language of the opinion seems to illustrate high concern for police violence in spite of a legal climate which has long refused to restrain such behavior.
As a threshold matter, the Seventh Circuit makes the unsurprising finding that “Jerome has a constitutional right not to be shot on sight.” More importantly, the court notes that the primary consideration for determining the legality of police force lies in the “quality of the information known to the officer at the time he fired the weapon.” In this case, the fact that the officer felt threatened by entering into an enclosed space with an assailant does not justify deadly force alone – even when that enclosed space houses and shotgun-wielding drunk.
So what can be deduced from Weinmann? First, the Seventh Circuit has created a line of favorable precedent for victims of police violence. The extent to which that may affect police behavior remains to be seen. Also, the case seems to signify that federal courts are becoming increasingly sensitive to police violence and its pervasiveness. Finally, and perhaps most interestingly, this case seems to debunk, somewhat, the viability of the argument that police fear might justify deadly force. Of course, police may and should use force when necessary to prevent imminent, critical danger to themselves or the public, but a case like this demands a cool head and considerate action – even in the most intense situations.
Sources: Weinmann v. McClone, No. 14-1794 (7th Cir. May 27, 2015).
May 20th, 2015
The Second Circuit saved itself some trouble in their May 7 decision, ACLU v. Clapper. Faced with a challenge to the NSA’s bulk phone metadata collection program, the federal appeals court determined the practice exceeded the scope of the Foreign Intelligence Surveillance Act, particularly Section 215 of PATRIOT Act amendments.
For now, Section 215 allows the FBI or NSA to obtain “any tangible item” relevant to an authorized investigation, but the provision expires June 1. Because the vast majority of these records do not relate to any particular investigation, the NSA has been enjoined from continuing these mass sweeps of American’s information. In doing so, the court obviated the need to address Fourth Amendment claims raised against NSA. As such, the case does not seem to have much impact at first glance.
Interestingly though, the court took its time to appreciate the “daunting” task of addressing these issues. While the NSA denies recording actual phone conversations, the information they obtain through metadata collection implicates significant privacy concerns. Who you call and when, intuitively serve as “proxies” for recorded voice content.
The second circuit also offers a hint as to how they might analyze similar Fourth Amendment claims in the future. Since the landmark case, Katz v. United States, the “reasonableness” of societal privacy interests have become intrinsically interwoven into Fourth Amendment Jurisprudence. Previously, the law could only account for physical invasions and stood unprepared for modern, electronic investigative tactics.
This opinion seems to suggest that congress itself could make determinations of reasonableness. The case states, “endorsement of the Legislative Branch of government provides some degree of comfort in the face of concerns about the reasonableness.” Congress could not escape the Fourth Amendment completely, but the court says it will give weight such legislative evaluations of reasonableness.
The notion of legislatively constructed “reasonableness,” suggests the such sweeping searches might withstand Fourth Amendment challenges in the Second Circuit so long as statutes provide for them. Should Congress amend and extend the PATRIOT Act this June to account for Clapper, American courts may soon encounter another watershed moment for Fourth Amendment. Stay tuned.
ACLU v. Clapper, No. 14-42-CV (2d Cir. May 7, 2015) available at http://www.ca2.uscourts.gov/decisions/isysquery/773a98db-d41d-4db8-95aa-182f994923b5/1/doc/14-42_complete_opn.pdf.
Orin Kerr, Second Circuit Rules, Mostly Symbolically, That Current Text of Section 215 Doesn’t Authorize Bulk Surveillance WASHINGTON POST, May 7, 2015.
May 7th, 2015
Recent events have forced our society to confront unpleasant realities with respect to law enforcement. In light of numerous recent police controversies, the public’s faith in those who “serve and protect” has faded substantially. Only two days after Freddy Gray’s suspicious death in police custody, the Supreme Court issued its decision in Rodriguez v. United States. The case represents a significant, but incomplete, victory for those fighting against the abuse of police power. Tensions between police and communities have permeated throughout the Supreme Court’s most recent term. Slate writer Mark Joseph Stern opined that Rodriguez signifies a change of perspective attributable to fallout from Michael Brown’s death in Ferguson.
On March 27, 2012, Nebraska K-9 Officer Morgan Struble pulled over Dennys Rodriguez after observing his SUV veer momentarily onto the shoulder. Struble then inspected Rodriguez’s license and registration, checked for outstanding warrants, and issued a written warning. Vexingly, the officer refused to allow Rodriguez to leave despite issuing him a ticket and returning all his documents. Instead, Struble waited for a second officer to arrive at the scene before having a police dog sniff the car for drugs.
The Eight Circuit Court and Supreme Court Clash
Seven or eight minutes passed from the issuance of the ticket and dog’s alert. After the Eighth Circuit affirmed the conviction, the Supreme Court reversed. The ruling, described most generally, precludes police officers from extending a traffic stop longer than necessary to address the traffic issues at hand and “negligably burdensome” safety precautions. Once the police hand you a ticket, they must let you leave. The ruling seems straight forward enough, but concerns remain regarding the practical enforcement of such a restriction and its ramifications for further cases.
A close look at Justice Ginsburg’s opinion for the Court’s 6-3 majority reveals some interesting questions about the interplay of timing and the interests served by a traffic stop. Routine car stops necessarily entail certain activities related to the enforcement of traffic laws. The Court expressly notes checks of registration, insurance, licenses, and outstanding warrants as acceptable police activities. Additionally, police may undertake certain safety precautions which otherwise do not advance the interest of the stop. The opinion unequivocally states, police seizures remain lawful “so long as [unrelated] inquiries do not measurably extend the duration of the stop.” The opinion also makes clear that officers cannot drag their feet while conducting permissible activities because authority for the seizure ends “when tasks tied to the traffic infraction are—or reasonably should have been—completed.”
Rodrigues vs. United States Provides Guidance for Police Conduct
The critical inquiry for future cases lies in the nature of police conduct: was the officer advancing goals related to the “mission” of the stop or reasonable safety interests and, if not, did these activities extend the duration of the stop? Rodriguez provides some guidance. Under Ginsburg’s rationale, activities aimed at “ensuring that vehicles on the road are operated safely and responsibly” relate to the goals of enforcing the traffic code and are thus permissible. Conversely, actions directed towards the enforcement of “ordinary criminal wrongdoing” do not relate to such goals and may not be undertaken unless doing so does nothing to slow down the process.
Here lies the failing of Rodriguez. Rather than outrightly prohibit police overreach, it seeks to disincentivize it. This failure becomes apparent when one considers the case of a traffic stop conducted by multiple officers. If Officer Struble rode with a (human) partner or backup arrived earlier, one officer could handle the proper duties for the stop while the other peers in windows, does “safety” pat-downs of other passengers, or walks a drug-sniffing dog around the exterior of the car. In fact, the latter situation occurred with the Court’s approval in 2005’s Illinois v. Caballes.
This case has rightly been viewed as a significant step towards curtailing the potential police overreach and pretext with respect to the traffic stop. One would hope, as it has been suggested, the Supreme Court has taken stock of the problems police have with overreach. However, while the Court appears to be moving forward, they fall short of fully appreciating problems at hand. They have adapted, but they are still behind the times.
Mark Joseph Stern, The Ferguson Effect, SLATE, April 21, 2015
Orin Kerr, Explaining Heien and Rodriguez, WASHINGTON POST, April 22, 2015, available at
Orin Kerr, Police Can’t Delay Traffic Stops to Investigate Crime, WASHINGTON POST, April 21, 2015
Rodriguez v. United States, No. 13-9972 (U.S. Apr. 21, 2015).
January 29th, 2015
Law enforcement agencies have been increasingly dependent on drug-detection K-9’s, but are their results reliable in court?
A K-9 must have completed a training course and be certified in order to be used on the field or for a K-9’s alerts to be recognized by a court. In the recent years, the effectiveness and reliability of K-9 and K-9 training have been raising questions that have lead courts to re-evaluate the proper approach of assessing K-9 searches.
The K-9 training course and requirements vary per state. Some state legislatures have been implementing laws in order to have a statewide standard. For example, in Illinois, the Illinois General Assembly passed a law requiring a K-9 to undergo training and obtain certification under a standard similar to that of the Scientific Working Group on Dog and Orthogonal Detector Guidelines (SWGDOG). SWGDOG is a nationwide standard that was established to develop a consensus-based ‘best practice’ system to enhance the performance of K-9 teams and to optimize their use in combination with electronic detectors. SWGDOG was established in order to improve the reliability of a K-9’s alert during a search, the evidence of that search and the K-9’s training presented in court. Under the Illinois law, 50 ILCS 705/10.12, law enforcement agencies must have their K-9 annually certified, each time meeting the stated requirements designated by the Illinois General Assembly Board.
Majority of courts, both state and federal, treat K-9 alerts as per se probable cause when the K-9 is trained and reliable. Until recently, these courts were quick to find this standard based simply on affidavits from the dog’s officer or handler stating their dog was trained or certified. Then in recent years, courts began applying limitations as to the factors considered when determining a K-9’s reliability. Particularly, in Florida v. Harris, the U.S. Supreme Court held that each party should be allowed to make their best case in order to prove that the K-9’s performance was reliable, as oppose to Florida’s previous “check list” test, as described below.
When a court tests whether an officer has probable cause to conduct a search all that is required is the kind of “fair probability” on which “reasonable and prudent people act.” The Florida Supreme Court had created a strict evidentiary checklist to assess a drug-detection K-9’s reliability, where the State would need to introduce comprehensive documentation of the K-9’s prior hits and misses in the field. The U.S. Supreme Court quickly dismissed this, reasoning that this caused too many inaccuracies, especially with false alerts—both positives and negatives. For that reason, the U.S. Supreme Court found that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust the K-9’s alert. However, the Supreme Court also found that the defendant must have an opportunity to challenge such evidence of a K-9’s reliability. For example, the defendant may contest the adequacy of a certification or training program, examine how the K-9 or the handler performed in the assessments, or even say the officer cued the K-9.
Dogs are creatures of habit and officers or handlers can create subtle cues, whether intentional or unintentional, which can cue the K-9 to alert during a search, especially when the officer or handler has reason to believe there is contraband present. Unfortunately, courts regularly overlook this fact. Judges often trust the testimony of a K-9 officer because they fail to recognize the K-9 officer or handler’s role in or effect on a search. This leads to another weakness in the use of a K-9.
Moreover, problems like residue or trace odors may trigger a false positive alert. These false positive alerts, which can be caused by previous contact with a narcotic by either the serchee or a third party, leads the K-9’s officer or handler to believe there is probable cause. Even if the alert is valid, the alert is often to the odor of a narcotic, which the K-9 is trained to detect, and not the presence of the actual contraband. In these cases, the officer does not meet the proper requirements needed to perform a search and is therefore violating the serchees Fourth Amendment rights.
The Illinois Appellate Court recently decided a case based on the U.S. Supreme Court’s decision in Florida v. Harris. In People v. Litwhiler, the defendant’s conviction resulted from a traffic stop during which a police officer found the defendant in possession of a controlled substance. The K-9’s handler testified that the K-9 used during the traffic stop was certified in a ten-week training session where it was taught apprehension, tracking, and the detection and recognition of different scents and odors of contraband. In addition, the handler was certified and the K-9 was re-certified two times a year to do narcotic and apprehension work. The defendant argued that the K-9 was not sufficiently certified; yet the court found that the record proved otherwise. The record indicated that 66% of the time the K-9 alerted, narcotics were found. This, along with other evidence, lead the court to hold that the field alert statistics and the handler’s testimony were sufficient to satisfy the State’s burden of proving the K-9’s reliability.
Court decisions and legislations, like the one passed by the Illinois General Assembly, are increasingly testing the limits of a K-9’s use in the field by law enforcement officers. Although most cases will be decided on a case to case basis, these changes will lead courts to take a second look at a K-9’s reliability when convicting a defendant based on a K-9’s alert.
Florida v. Clayton Harris, 133 S.Ct. 1050, (2013).
Jeff Weiner, Police K-9’s and the Constitution: What Every Lawyer and Judge Should Know, The Champion, April 2012.
Patrick Yeagle, Drug Dogs Fail the Sniff Test, Illinois Times, January 9, 2014.
People v. Litwhiler, 12 N.E3d 141 (Ill. App. Ct. 2014).
November 12th, 2014
CNN Espanol and John Stobbs discuss the Michael Brown case in Ferguson, MO.
May 27th, 2014
The government has many reasons for criminalizing the production and distribution of child pornography. First, there is a compelling governmental interest in safeguarding the physical and psychological well being of minors. Second, the distribution of child pornography is intrinsically connected to the sexual abuse of children. Third, distribution of child pornography provides integral economic incentive for its production. Finally, there is little social value of reproductions of lewd sexual conduct of children. These were all reasons outlined in the landmark case of New York v. Ferber in which the Supreme Court established a constitutional foundation for criminalizing child pornography. 458 U.S. 747 (1982).
In addition to government interest in criminalizing child pornography, there is also a public interest. Tragedies involving children are usually gruesome and highly publicized. This commonly leads to greater public outrage and swifter government action. Congress has had little trouble passing legislation against child pornography due to the high levels of public support.
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April 27th, 2014
Due to recent case law developments, whether or not a person will face a minimum 10-year sentence for attempted sexual enticement of a minor depends on how his jurisdiction chooses to define two words: sexual activity. As of now, at least two circuits have chosen vastly different definitions. With the increase of internet related crimes, this question is becoming more and more common. It is likely that until the Supreme Court or Congress sets the record straight, circuits will continue to struggle with how to define this term. This article focuses the Seventh Circuit, which has defined “sexual activity” as requiring physical contact.
Under federal law, child enticement is codified under 18 U.S.C. § 2422(b). This statute prohibits using interstate commerce to coerce a person under the age of eighteen to engage in any illegal “sexual activity” or to attempt to arrange such an encounter. Those found in violation of §2422(b) “shall be fined . . . and imprisoned not less than 10 years or for life.” In order to charge someone under § 2422(b), federal prosecutors must also bring a charge under a state or federal statute that criminalizes “sexual activity” in order to establish the federal offense. This, however, has become difficult for prosecutors to navigate, as it has come to light that Congress has not
defined “sexual activity” within the meaning of § 2422(b).
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November 14th, 2012
In January 2009, Allan Sloan, senior editor at large for Fortune Magazine, was interviewed by NPR news. The subject of the interview was putting white collar crime in perspective—historically and recently. White collar crime is misunderstood by the general public because the vast majority of the public does not understand finance. Because our country is in an economic recession, crimes involving money laundering, insider trading and other types of fraud tend to gain much more public attention. Those accused of these crimes find themselves unfairly judged by the court of public opinion before a trial even begins. Sloan mentions in this interview one of the major problems facing those who are charged with these crimes: inconsistent punishments. To quote Sloan, “The thing that bothers me…is that once you’re in the criminal justice system, it becomes a lottery. And if you have a good lawyer and your luck runs, you may get off with probation. If your somebody like…Bernie Evers at WorldCom, he got, I believe 25 years. So you never know how it is going to turn out.” However with good representation and a lawyer who isn’t afraid to take your case to trial, you can rely on more than luck. Often white collar criminals mistakenly believe that their only option is a plea, because they have been found guilty by the court of public opinion before the case is brought to trial. If you are accused of a white collar crime, quickly hire a lawyer who isn’t afraid to fight for you and isn’t afraid to show you acquittals they have received on behalf of other businessmen in your situation.
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